Thoughts of an activist lawyer

Monthly Archives: July 2012

That State of the Nation Address was SO long. Whoever wrote it must be told that messages should be understood. You write a speech for more than thirty minutes and you’re bound to send your audience to sleep. In fact, beyond difficulties in staying awake, one felt literally drained by the time the President concluded his remark. And yes, I’m sure the President himself was exhausted after reading that opus.

Content-wise, President Aquino truly deserves a high mark of at least 80%. Even his staunchest critics must acknowledge that this is a President who has regained the trust of investors in this country. Gross domestic product has grown by a better-than-expected 6.4 percent for the first quarter. The peso is one of the strongest currencies in the region and the stock market is among the best performing in the world. The conditional cash transfer program. albeit controversial, has almost certainly made the difference between dying of poverty and subsistence for at least 4 million of its beneficiaries. Our schoolchildren will soon have a textbook each, and the daunted classroom and school chair shortage will be history by next year. What a difference good governance can do! While corruption still persists, one cannot deny that the problem is being addressed when highest official of the land leads by example.

So why, despite these, am I giving the President a grade of only 80 percent? Why not a 90 or even 100?

To begin with, I have naturally high expectations of President Aquino. My conviction has always been that anyone can do better than former President Gloria Macapagal Arroyo. The truth is that we hit absolute rock bottom under Arroyo that the only way to go is up. That’s the law of physics.

I think a grade of 80 percent applies because there are areas of governance that the President completely ignored in his address and in his performance. Foremost of these is in the field of human rights and our failed criminal justice system.

What Mr. Aquino and his advisers probably do not know is that a working justice system and the protection and promotion of human rights are also accepted indicators of good governance and economic development. Contrary to the claims of many tiger economies, there is no antipathy between economic development and the promotion of human rights. In fact, the discharge of state responsibilities anent these rights is viewed as investment in human capital. This explains why many of the very developed economies of Northern America, Europe and Latin America are also bastions of democratic principles and human rights.

Furthermore, Aquino owed it the nation to address these issues in his Sona. Only last June, the Philippines was the subject of the Universal Peer Review in the United Nations Human Rights Council. There, one country after another berated the Philippines for its failure to punish the perpetrators of extralegal killings, enforced disappearances and torture. You would think that because of the tenacity of these criticisms, the President would choose the Sona to give assurance that his administration acknowledges the problem and that he will address it. But no, not a word was said about human rights. This has prompted at least two senior diplomats to remark that apparently, the PNoy administration is oblivious to their concerns expressed in the UPR.

What’s even sadder is that as a victim of human rights violations himself, the President has every reason to give priority to the promotion and protection of fundamental rights. He still rages in anger recalling how his mother and his sisters were subjected to degrading and humiliating treatment whenever they visited Ninoy in his detention. And of course, as a very young man, he himself became a victim of extralegal killing when his father was martyred in 1983.

What to do?

Well, since I’ve had first hand experience with the President when we successfully lobbied that the Philippines become a member of the International Criminal Court, I have not given up on him. My experience is that because of the many issues he has to deal with, one has to be patient and yet clear on why emphasis should be accorded this field. Already, Max De Mesa of the Philippine Alliance of Human Rights Advocates and Katarungan, an umbrella organization of HR advocates focused on putting an end to extralegal killings an enforced disappearances, have agreed to plot a master plan on how Aquino’s experience as a victim could be the trigger to his presidency’s potential legacy as a champion of both economic development and human rights. This much we should do since I have repeatedly said that we may be the next victims of impunity.

Like this:

It is wrong for the government not to file a diplomatic protest over the Chinese naval vessel that was recently grounded 111 nautical miles from Hasa-Hasa in Palawan. No, the protest should not be that it grounded. Surely, a diplomatic protest cannot address the Chinese mariner’s obvious lack of familiarity with the dangerous waters surrounding the Spratlys group of islands; a fact that militates against their so-called ancient claim to the area. The protest should be over what the navy vessel was doing in our waters in the first place: patrolling.

Sovereign states could not exercise sovereignty and jurisdiction in the exclusive economic zone since their so-called sovereign right is limited to the right to explore and exploit the resources found thereat. Still, foreign naval vessels, particularly in disputed territory, have no business patrolling the same. It should have been Philippine vessels from either the coast guard or our navy that should have been patrolling these waters in the first place.

The failure to protest the activity of Chinese vessels militates against our own claim because underiInternational law, the principle of estoppel has not only been consistently applied; it has also been ruled to be sufficient to extinguish title to territory even if one originally existed. For instance, in the case of the Preah Villar temple which was then disputed between Thailand and Cambodia, the International Court of Justice ruled the temple to be within the territory of Cambodia because. In the early 1900’s, Thai authorities did not protest a map showing the temple to be in what was then the territory of France and today, of Cambodia.

Likewise, estoppel has been applied in the Eastern Greenland case between Norway and Denmark. There, the Permanent Court of International Justice cited Norway’s recognition of Danish title over Eastern Greenland when it recognized such title as embodied in the so-called Ilian declaration. In fact, estoppel, defined as a rule of evidence whereby a person or a state is precluded from denying the truth of a statement of facts he or it has previously asserted -has been accepted as a general principle of law in international law. Further, estoppel has oftentimes enabled states to prove a superior claim to disputed territory where both claimants are able to invoke almost identical evidence of effective occupation. It is hence the legal principle that has tilted the balance in favor of one state in a dispute where both parties have equiponderance of evidence.

The fact that we have recently been filing quite a number of protests over recent Chinese aggression and hegemony in the Panatag Shoal should be of no consequence. The law, after all, does not put a cap on how many of these protests we can file. We should not limit the number of these protests. Instead, we should always protest when there is a legal ground, and document them properly since they constitute strong evidence of title. This is because they form clear evidence that we have been asserting our claims through the means recognized by diplomacy as the proper form: a diplomatic protest. It is when we stop making these protests that we may be ruled as either abandoning our rights, or sitting on them.

In any case, this is not the only time when we should have protested Chinese incursion into our territory. Not too long ago, the international media reported a collision between an American destroyer and a Chinese submarine off the coast of Zambales.

Instead of protesting that incident, the Arroyo administration opted to sweep it under the rug and neither confirmed nor denied the incident. Perhaps, what worried the former administration was adverse public opinion that the Visiting Forces Agreement — that has enabled American ships to dock and navigate through our waters — could in fact increase the probability of military confrontation between the world’s lone superpower and the region’s military giant. While we do not know exactly where that collision occurred –as the Arroyo administration in fact claimed that it took place in international waters — the reality is that bereft of underwater scanners and facilities that would enable us to determine the presence of Chinese submarines, we will not know if they are in our waters. Note that while all submarines could exercise innocent passage even in our territorial waters, defined as 12 nautical miles from our coast. Still, the requirement is that they must surface. In any case, the presence of submarines and other military vessels patrolling disputed EEZ are not innocent. They constitute a threat to our national security.

What is clear is that once more, our policy makers opted to be very Filipino in their recent conduct: opting not to add further coal to a burning fire. The only problem here is meanwhile, our adversary appears happy to pour gas onto the flames.

Like this:

I accompanied the wife and two children of missing lawyer Joe Franck Zuniga to see Justice Secretary Leila De Lima last week. The purpose of the meeting was to solicit the secretary’s assistance in determining the whereabouts of the missing lawyer, the fourth person to have disappeared this year. De Lima did not disappoint. In the said meeting, she announced that she was creating an NBI Task Force to look into the case.

According to the lawyer’s wife, Charito, Zuniga called her on June 20, 2012 to say that he had a meeting at Oceanworld Subic. He has not been heard from nor seen since. His car, a Honda Civic, was recovered the following day in a remote part of Zambales. According to sketchy police reports, the vehicle was driven to the spot where it was found by a man who later boarded a second vehicle. Unfortunately, the witness who reported this failed to get a glimpse of the face of the driver.

Thus far, the family and authorities are facing a blank wall. Charito and the children related how Zuniga recently received what they believe to be a death threat. Apparently, intelligence authorities from Subic furnished the lawyer with a flyer bearing his picture taken in a prayer rally in the vicinity of Central Methodist Church along Taft and Kalaw, Manila. The leaflet bore the cellular phone numbers of the missing lawyer, his home address and the amount of $10,000.00, which they interpreted as the price tag for the life of the lawyer.

The family could think of no one in particular who would benefit from the disappearance of the lawyer. It is of public knowledge though that Protestants have been known to be very vocal in the promotion of social justice, which is why many military operatives have branded some church members from both the United Church of Christ of the Philippines and the Methodists as “communists”.

A second theory has to do with an on-going strife between the break-away Methodist church headed by Zuniga, AIM Philippines, or the Philippine Methodist Church from its mother church, the United Methodist Church -which until today is supported by the Methodist church of the United States. The family told De Lima that Zuniga had been very critical of what he claims to be issues of corruption within the mainstream Methodist church which led to the recent breakaway of Zuniga’s denomination. I myself refuse to believe that a Christian could conspire against a fellow Christian. But Secretary De Lima was correct in noting that this too would have to be investigated by authorities.

Zuniga is not the only victim of enforced disappearance whom I represent. Prior to his disappearance, three Muslim scholars bound for Somalia disappeared presumably at Naia Terminal 3 where their domestic flight from Zamboanga landed. The three never made it to their connecting flight at Terminal 1. The three simply disappeared and their respective families only had the chance to claim their checked-in luggages one month after their disappearance. Like in Zuniga’s case, there has since been no lead on what happened to the three Muslims. Recently I wrote a letter to Secretary Mar Roxas of the Department of Transportation and Communication for him to convene a conference at the airport for all heads of security forces then present at Naia 3 on the date and time of the disappearance of three men. I am confident that given that the immediate arrival area at the Naia is a secure and sterile area, we could account for all security personnel who were in the vicinity of the arrival gate of the flight taken by the three missing scholars. Meanwhile, I have received unconfirmed reports form sources within the security sector that one of the three missing may have already been killed.

It’s ironic that these disappearances happened at the heel of the country’s recent universal peer review at the Human Rights Council. Almost all countries that quizzed De Lima on the Aquino administration’s human rights record expressed concern that the government is in breach of its obligation to promote and protect the right to life against both extralegal killings and enforced disappearances. The concerns were not that Aquino was behind these, but that this administration was not discharging its obligations to investigate, prosecute and punish the perpetrators of these killings and disappearances.

In fairness, I am sure that Aquino himself has never condoned these affronts on the right to life. Unfortunately, part of what international law demands of him is not just to publicly renounce these crimes, but also to punish the perpetrators thereof.

While the numbers of disappearances has not been as large as in other countries such as Peru, there is still reason for alarm. If Zuniga, a seasoned litigator, a respected member of the legal community in Bataan, and a respected church leader could disappear without a trace, what happens now to normal mortals when they disappear?

The Quezon City Prosecutor’s Office rightfully dismissed child abuse and libel raps filed in connection with “Jon-Jon’s” notorious “macho boy” dance sequence in the program of Willie Revillame. Ironically, it was even the parents of Jon-jon who filed suit against bloggers Froilan Grate and John Silva. Also sued was noted child psychologist Lourdes Carandang.

The three were sued over statements intended to protect the rights of Jon-jon as a child. Recall that in an episode of the show “Willing Willie,” Jon-jon was asked by TV host Willie Revillame to gyrate like a macho dancer in exchange for cash. While the boy obliged, television viewers, including the respondents, did not fail to notice that the boy was in tears while performing for the camera.

Grate created a Facebook page criticizing the television host for the incident. He also sent communication to various government agencies complaining about the incident. Silva criticized the television host in his own Facebook account. Carandang, on the other hand, issued a professional opinion that the incident had adverse effects on Jon-jon and other children who saw the incident on television.

The Center for International Law (Centerlaw), a civil society organization that seeks to promote freedom of expression, among others, represented Grate before the fiscal’s office. It argued that since criminal statutes such as libel are strictly construed against the state, libel on the Internet, in the absence of a statute, is not criminal. It also argued that the criticisms published by Grate on Facebook were covered by qualified privilege since they were fair commentaries on an issue that involves the public interest: that is, the protection of the rights of minors. Centerlaw is the same outfit that successfully impugned Philippine criminal libel law as being contrary to freedom of expression in the United Nations Human Rights Committee.

As chairman of Centerlaw, I submit that this latest legal victory is a big win for freedom of expression. The Internet, albeit initially developed as part of a US defense initiative, the so-called, “star wars technology,” has nonetheless made possible what legal theorists have referred to as the “free market place of ideas”. This market enables the people to ascertain the truth and develop opinions. Without this free marketplace of ideas, we would not have public opinion that is indispensible in any democracy. This is why our courts have repeatedly declared infringements on freedom of expression as null and void.

Clearly, this recent victory has gotten rid of another obstacle to enable the Internet to perform the crucial role of an information superhighway.

It is also good news that the respective drafts of the Department of Justice and the UP Law Center for a New Criminal Code have both done away with criminal libel. Apparently, there is finally recognition that criminal libel is not indispensible since there is an alternative, to wit, civil damages. Furthermore, there too is the recognition that what libel seeks to protect—the right to privacy of private individuals—is not proportionate to the means it adopts to achieve this: imprisonment. The only problem now is how soon Congress can enact an entirely new code of crimes. My bet is it will take at least four years.

This is why Centerlaw is also provoking jurisprudence to declare criminal libel as being contrary to our treaty obligations and hence null and void. While the “view” of the UN Human Rights Committee is that our libel law is contrary to freedom of expression, the view itself is not binding. At most, it is evidence of a breach of a treaty obligation and hence, contrary to the Latin maxim of pacta sundt servanda, or treaty obligations must be complied with in good faith. This, according to our Supreme Court, in turn, is a “generally accepted principle of international law” and hence “forms part of the laws of the land.”

The latest case where we have invoked the defense of pacta sudt servanda as a ground to invalidate our criminal libel law is in a pending case for libel filed by the sitting mayor of Iloilo City against the Daily News Today. This is the first instance where the UN view has been raised as a defense in an actual, pending libel case. It is anticipated that regardless of how the Iloilo Regional Trial Court resolves this defense, the matter will be elevated to the Supreme Court on an issue of law.

I hope that the high court then accepts the UN view as evidence of a breach of Philippine law: that of pacta sundt servanda.

I have discovered inadvertently last year, through a Hong Kong-based lawyer, that Mrs. Myrna Reblando is being processed in Hong Kong for asylum to another country. The information given to me was confidential and knowing that asylum is also a confidential legal process, I have not said anything about it.

Mrs. Reblando did not inform me that she was seeking the assistance of Hong Kong directly. We are aware, however, that she has consistently worried about her and her family’s protection, even as she acknowledged to me that our own government has provided her security escorts in her home, up to the day she left the country.

We do not take it against her that she had decided to take this course of action. We know that she, like her fellow victims, has suffered greatly and has been under tremendous physical and emotional pressure. Despite the best efforts of the prosecution, the trial is protracted and a successful conclusion is not immediately forthcoming. No one can blame the victims for feeling threatened over news that Zaldy Ampatuan plans to run for office again. Our own clients report that emissaries continue to approach them with offers of financial settlement in favor of concessions for the suspects. At the end of each day, it is the fight for justice against the Ampatuans that sustains many of our clients. #